Bombay High Court Rules: Larger Apartments Mean Higher Maintenance Fees

The Bombay High Court has ruled that maintenance fees for apartments should be proportionate to the size of the apartment, meaning larger units will pay more. This decision impacts property owners and housing societies in Mumbai.

Bombay High CourtMaintenance FeesApartment OwnershipMumbai PropertyMaharashtra Apartment Ownership ActReal Estate MumbaiAug 20, 2025

Bombay High Court Rules: Larger Apartments Mean Higher Maintenance Fees

Real Estate Mumbai:On August 4, 2025, the Bombay High Court ruled that maintenance fees for apartments should be proportionate to the size of the apartment. This means that people living in larger apartments have to pay a bigger share of maintenance costs for common areas and facilities compared to those with smaller apartments.

Lawyers representing a group of homebuyers brought to the attention of the court that there is an erroneous presumption that larger apartments are occupied by more people, which is unconnected with the common maintenance amount. They argued that the charges for using the common areas of the apartments should be equal.

The lawyers argued: “On merits of the matter, the audit reports show that common maintenance collected by the condominium is used for maintaining common areas and amenities like swimming pools, club houses, gyms, parks, and security, which are used in common by all apartment holders irrespective of their undivided share or area of their apartment.”

The lawyers cited the law laid down by the Bombay High Court in the case of Venus Co-operative Housing Society Vs. Dr. JY Detwani. In that case, the Court held that common amenities are enjoyed by all members of the society irrespective of the area of the flat they hold, and therefore large flat holders cannot be forced to pay more maintenance towards the common facilities.

However, the Bombay High Court disagreed with this perspective. The High Court stated that the argument that owners of larger apartments do not receive any additional benefit or priority in the undivided share is not valid.

An extract of the judgment read as follows: “...in view of the applicability of the provisions of Section 10 of the Apartment Act which clearly mentions that the common profits of the property shall be distributed among and the common expenses shall be charged to the apartment owners according to the percentage of the undivided interest (size of apartment) in the common areas and facilities, this applies squarely to the case of the Petitioners before me.”

### How Did This Case Start?

According to the Bombay High Court order dated August 4, 2025, here’s a timeline of events:

- **July 29, 2011:** A Deed of Declaration was executed and registered, subjecting the house property to the provisions of the Apartment Act.
- **May 31, 2017:** A supplementary Deed of Declaration was executed and registered for additional construction. A Deed of Apartment was executed in consonance with the Deed of Declaration with each apartment owner.
- **November 11, 2020:** Five homeowners who had larger apartments filed a complaint with the Deputy Registrar of Co-operative Societies, alleging that the maintenance charges levied by the housing society are in violation of Section 10 of the Apartment Act.
- **December 28, 2020:** The Deputy Registrar of Co-operative Societies issued a notice to the Chairman and Secretary of the housing society, who filed their reply on December 28, 2020.
- **July 8, 2021:** The Deputy Registrar of Co-operative Societies passed an order directing the housing society to levy maintenance charges proportionate to the undivided share (as per the size of the respective apartments) of the apartment owners in terms of Section 10 of the Apartment Act.
- **July 14, 2021:** The housing society put a notice whereby the said changes in maintenance amount to be paid, which is now to be based on the size of the respective apartments, were intimated to the homeowners.
- **2021:** A group of homeowners approached the Co-operative Court, Pune, to challenge the said order dated July 8, 2021.
- **May 13, 2022:** The Co-operative Court, Pune, rejected the appeal, and thus the homeowners filed an appeal in the Bombay High Court.
- **August 4, 2025:** Homebuyers lost the case in the Bombay High Court.

### What Did the Bombay High Court Say?

Justice Milind N. Jadhav of the Bombay High Court said:

- Resolution passed by the housing society cannot override the law.
- The definition of common areas under Section 3(f), common expenses under Section 3(g), and common profits under Section 3(h) of the Apartment Act applied to the present case.
- It is seen that just because the association of members in the condominium (housing society) have in the past passed a resolution for equal maintenance, it does not mean that they or the members are estopped (can be stopped) from following due process of law. The condominium (housing society) under the Apartment Act is empowered to act in the interest of all apartment owners for maintenance of the common areas and facilities in view of Section 10 of the Apartment Act.

### Section 10 Says Common Expenses to Be Charged as Per Size of Apartment

Justice Milind N. Jadhav of the Bombay High Court said:

- The argument of the Petitioners that the Petitioners holding larger apartments do not get any additional benefit or priority of preference in the undivided share or do not have any additional benefit cannot be countenanced in view of the aforesaid observations and findings and is stated to be rejected.
- Thus in view of the applicability of the provisions of Section 10 of the Apartment Act which clearly mentions that the common profits of the property shall be distributed among and the common expenses shall be charged to the apartment owners according to the percentage of the undivided interest in the common areas and facilities, this applies squarely to the case of the Petitioners before me.

### Large Apartment Owners Cannot Obstruct the Implementation of Beneficial Law

Justice Milind N. Jadhav of the Bombay High Court said:

- The Petitioners (a select group of homeowners) have already benefited in the past due to the inequality and non-application of the statutory provisions under the Apartment Act. They cannot obstruct the implementation of the provisions of the Apartment Act which squarely and admittedly applies to their case. If the Petitioners' (a select group of homeowners) case is to be accepted, then the registered Deed of Declaration would be a nullity in law.
- There is a clear distinction between the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963, and the Maharashtra Apartment Ownership Act, 1970, and the rights of members under the aforesaid two statutes as applicable for the levy of maintenance charges.

### Legal Reasonings Applied by Bombay High Court to Reach This Judgment

Justice Milind N. Jadhav of the Bombay High Court said:

- From a conjoint reading of the aforesaid covenant in the Deed of Declaration and the statutory provisions, it is prima facie seen that the Deed of Declaration provides income and common expenses based on the size of their respective purchased apartment.
- Section 6(1) of the Apartment Act prima facie provides for a basis and computation of interest in the common areas and facilities of each apartment owner and it categorically states that each apartment owner shall be entitled to an interest in the common area and facilities for the percentage expressed in the Declaration (emphasis supplied).
- Thus, it also states that such percentage shall be computed by taking as a basis of the value of the apartment in relation to the value of the total property. Section 6 of the Apartment Act further categorically provides that the percentage of undivided interest of each apartment owner in the common area and facilities as expressed in the Declaration (which is the Deed of Declaration herein) shall have a permanent character and the percentage of common undivided interest in the common area and facilities shall not be separated from the apartment to which it appertains.
- Thereafter, Section 10 prima facie when read provides for common profits of the properties to be distributed amongst and the common expenses to be charged to the apartment owners according to the percentage of the undivided interest in the common area and facilities.
- Thus, combined reading of the aforesaid provisions and the covenant in the Deed of Declaration which forms the basis of the MAO Agreement (Maharashtra Apartment Owner Act) each apartment owner makes it clear that the undivided interest in the common area and facilities is an interest which runs with the apartment and upon transfer, the undivided interest, sale, and transfer together with the apartment irrespective of a specific covenant to that effect in the Conveyance Deed.
- In that view of the matter, the ascertainment of the percentage of interest in the common area granted to each apartment owner is according to the Deed of Declaration which is required to be calculated in proportion to the value of the apartment in relation to the value of the entire property as provided in the Apartment Act.

Frequently Asked Questions

What did the Bombay High Court rule about maintenance fees for apartments?

The Bombay High Court ruled that maintenance fees for apartments should be proportionate to the size of the apartment. This means that people living in larger apartments will pay a bigger share of maintenance costs for common areas and facilities.

Why did the homebuyers argue against the maintenance fee structure?

The homebuyers argued that the charges for using the common areas of the apartments should be equal, regardless of the size of the apartment, as all residents benefit equally from these amenities.

What legal basis did the Bombay High Court use to make this ruling?

The Bombay High Court based its ruling on Section 10 of the Maharashtra Apartment Ownership Act, which states that common expenses shall be charged to the apartment owners according to the percentage of the undivided interest in the common areas and facilities.

What is the significance of the Deed of Declaration in this case?

The Deed of Declaration is a legal document that specifies the percentage of undivided interest in the common areas and facilities, which is calculated based on the size of the apartment. This document is crucial for determining maintenance fees.

What are the implications of this ruling for property owners in Mumbai?

The ruling implies that property owners in Mumbai with larger apartments will have to pay higher maintenance fees, reflecting the size of their units. This ensures a fair distribution of maintenance costs based on the use of common facilities.